Liz, the best chart I know of on LGBT rights in the U.S. is EqualityGiving’s State of Equality Scorecard, which includes same sex marriage.It does not, however, deal with the question of the validity of marriages by transsexuals, whether they transition before or after marriage.Lambda Legal, NCLR and NCTE may have charts or other information specific to transsexuals.

Of the states you listed, only Texas and, I believe, Ohio, have addressed the validity of marriages involving transsexuals.In both cases, however, the dispute involved trans women who had fully transitioned, had SRS and obtained new or amended birth certificates showing them as female before they married (in the Texas case) or attempted to marry (in the Ohio case).Both cases, as well as the similar decision in Kansas, essentially said, “once a man, always a man,” regardless of what you might have done since birth.Under those decisions, an opposite-sex marriage in which one partner transitions after marriage theoretically would continue to be valid.As I said, however, as far as I know, there has never been a decision in the U.S. specifically holding that such marriages are still valid.It would seem logical that, if you’re considered to be male (or female) despite surgery, transitioning and changing your birth certificate, then it should be legal to marry a cissexual female (or male).There are some, however, who essentially argue that transsexuals are both sexes and, therefore, can’t legally marry anyone.Some foreign countries, like the U.K., have addressed the risk that permitting transsexuals to legally change their sex will result in illegal same-sex marriage by prohibiting married people from changing their sex for legal purposes, unless they first get divorced.I have one post-op trans woman friend in England who remains legally male because she and her wife want to stay married.

I don’t know of any decision in Kentucky regarding the validity of marriages involving transsexuals, whether they transition before or after marriage.

In New Jersey, a court held in 1976 that the marriage between a cissexual male and a trans woman who had legally changed her sex before marriage was valid.There is no case there, however, saying that a marriage in which one of the partners transitions after marriage is still valid.That question is unlikely to arise, since New Jersey allows civil unions that are supposed to have all of the same rights and responsibilities as marriages.(New Jersey is currently studying whether the two are truly equal, as the legislature intended.If not, they are likely to change their laws to permit same-sex marriage, as is now the law in Massachusetts and California. Once same-sex marriage is legal, this issue, of course, goes away.)

Like New Jersey, Connecticut and Vermont allow same-sex civil unions.I know of no decisions in either state regarding the validity of marriages involving transsexuals, whether they transition before or after marriage.Thus, the quotation in the NY Times article [on existing marriages where one partner transitions that Liz linked to] stating that Christine Littleton could legally “marry” a man in Connecticut or Vermont is inaccurate.While she could enter into a civil union with a man in those states, there is no reason to believe she could actually marry a man there.

The whole picture gets even more complicated if you consider the fact that three states (Ohio, Tennessee and Idaho, where I was born) do not permit the change of a person’s sex on their birth certificate, whether they have had SRS or not.The State of Arizona, however, has already recognized me as female on my driver’s license.Would that designation control if I wanted to get married here?Nobody knows.Of course, I could probably walk into a courthouse, except the one here in Prescott where they all know me, show my driver’s license and obtain a license to marry a cissexual man.That’s no guarantee, however, that the marriage is actually valid.A cissexual man and a trans woman, who still had an “M” on her driver’s license, or another man (the news reports are unclear regarding whether the second partner was gay or trans) recently managed to do just that and barely escaped prosecution for providing false information on their marriage license application.

Then, consider the fact that, even though I can’t change my birth certificate after SRS, I can change my sex to female on both my passport and my Social Security records with proof of surgery.If I attempt to marry a man here, or anywhere else where same sex marriage is illegal, will the courts look to those documents, rather than my birth certificate, to determine if my marriage is valid?Again, nobody knows.

The bottom line is that the marriage rights of transsexuals are a mess, contrary to the beliefs of some gays and lesbians, who occasionally express resentment at the (mistaken) notion that we can marry persons of the same birth sex with impunity.The only fair, as well as the simplest, solution to these problems for both trans and non-trans people is to allow same-sex marriages, not civil unions, without restriction based on sex or gender.Until that happens, or there’s a hell of a lot of successful litigation in many, many states, trans people will continue to have good reason to worry about the validity of their marriages, whether they transition before or after exchanging vows with the partner of their choice.

When the conversation turns to same-sex marriage, the array of opinions on the complex constitutional, state, and federal issues implicated in the same-sex marriage debate are numerous and diverse. One of the major recurring debates is the constitutionality of banning same-sex marriages or refusing to recognize a same-sex marriage performed in a sister state. Before we can conclude whether same-sex marriages must be recognized in a sister state under the full faith and credit clause, or whether the Defense of Marriage Act (DOMA) is constitutional and protects sister states from having to recognize such out-of-state same-sex marriages, we must first establish what constitutes a same-sex marriage. To determine whether a marriage is an opposite sex heterosexual relationship or a same-sex homosexual union, we must first decide how to define the terms “man” and “woman.”

Because states rely on different factors to determine legal sex, a marriage involving a transgendered spouse could be considered an illegal homosexual union in some states and a legal heterosexual marriage in other states. This article analyzes these contradictory approaches to sex determination and their implications for the same-sex marriage debate. The article starts by describing transgendered conditions and sets the stage for understanding the legal factors that a state could use to determine sex for purposes of marriage. It then provides a description of the recent cases involving transgendered marriages and exposes the conundrum that will develop as different states apply different rules to determine sex. It continues with an analysis of the full faith and credit implications of a state sanctioned amendment to the sex designated on a transsexual’s birth certificate. Finally, it concludes that the current patchwork quilt approach to determining a person’s legal sex, and consequently the validity of her marriage, raises full faith and credit issues that courts must fully address.

[…] one or more transgender partner continues. I’ve previously posted about those issues here and here. This is my most recent addition to that discussion: I agree with the basics of your description […]

From October 2, 2009 until yesterday, my sweetie and I have had several problems just getting documentation together. She’s a WBF, no problems for her. But since I have changed my name (comon law in 2000) pre 9/11, and my DL sex is F based on NYS DMV regs, the NYC Bureau of Vital Records wouldn;t allow me to get a copy of my own birth certificate, despite ancillary proof (old DL with old name and sex) and proof of name change (Declaration, not a judgment. I had to get a court order directingthem to turn over the B/C. Then the City of White Plains City Clerk refused to issue a marriage license because my name on the DL does not match the name on my B/C. Another lawsuit is imminent, even though we went down to NYC and the NYC City Clerk’s office was good enough to issue the license.

Part of my problem is that I am medically unfit for surgery and none of the surgeons will touch me. So I am legally female under DMV regs, and legally male for marriage based on an unchanged B/C.

To me it’s a loophole, and I think I get a pass in all 50 states and federally on the marriage issue, though I technically have to be the “groom.” I won;t do that on a passport, though, so I just don;t have one – I am going to try to get an enhanced drier’s license so I can at least take advantage of the Western hemishpere initiative.

Joann, your personal situation in an excellent example of how screwed up our state and federal laws are with respect to changes in birth certificates, driver’s licenses and other identification documents, and which, if any, of those documents controls for purposes of determining who a transgender person can marry in a state where same sex marriage is illegal. I’m glad you were finally able to get a copy of your birth certificate and find a sympathetic clerk who would honor it and issue you and your wife a marriage license. Congratulations! Hopefully, some day, we won’t have to jump through such hoops to live as who we are and marry who we love.